OUTLINE

The Health
Insurance Amendment (Professional Services Review and Other
Matters) Bill makes a number of amendments to the Health
Insurance Act 1973 (the Act).

The main items
contained in the Bill

·
clarify the administrative arrangements of the Professional
Services Review (PSR) Scheme contained in Part VAA of the Act
following comments made by the Federal Court in Pradhan v
Holmes and Others ; and

·
validates investigative and adjudicative referrals currently under
consideration by PSR Committees to the extent that the matters
referred relate to particular specified conduct or services.

The Bill amends
the age of access for services under the Cleft Lip and Cleft Palate
Scheme;

The Bill also
contains several minor technical amendments that remove redundant
definitions in section 3 of the Act relating to health care cards
and pensioner concession cards.

AMENDMENTS RELATING TO THE PSR SCHEME

The PSR Scheme is concerned with the conduct
of health professionals participating in Medicare. It
provides for the examination of an individual health
practitioner’s conduct by a PSR Committee (a committee of
peers) to ascertain whether the practitioner has engaged in
‘inappropriate practice’ (as defined in section 82 of
the Act) and, if so, to provide for certain action to be taken in
relation to the practitioner.

The essence of the scheme is one of peer
review to ensure that the technical and professional issues of
providing services are appropriately considered in the review
process.

The PSR Scheme was substantially amended in
1999 following a detailed review of the Scheme by a Review
Committee constituted by representatives of the Australian Medical
Association (‘AMA’), which chaired the Committee; the
Director of Professional Services Review (‘the
Director’); the Health Insurance Commission (‘the
Commission’); and the Department of Health and Ageing (the
Department). The amendments were contained in the Health
Insurance Amendment (Professional Services Review) Act 1999
(the Amendment Act).

The Federal Court considered these amendments
in Pradhan v Holmes & Others and made findings, which
suggested that the amendments may not have the effect intended by
the Review Committee. The proposed amendments address certain
issues identified by the Federal Court and clarify the intended
operation of the Scheme as envisaged by the recommendations of the
Review Committee.

The proposed amendments also validate the
investigative and adjudicative referrals, which are currently
before PSR Committees to the extent that those referrals specify
the conduct to be examined and do not involve examination of
conduct at large.

Given the complexity of the scheme, the
amendments to Part VAA of the Act are quite extensive.
However, the main amendments are as follows:

·
the inclusion of a new objects clause (section 79A) and a provision
which outlines the main features of the Scheme (section 80);

·
replacing the current investigative referral process with a request
from the Commission that the Director examine certain
services rendered or initiated by a practitioner for which a
Medicare benefit has been claimed (section 86). The purpose
of the request is to initiate a process of further review and
investigation into the conduct of the practitioner in connection
with those services by the Director and, where the Director decides
to make a referral to a PSR Committee, by that Committee.
This process of investigation and inquiry can only examine the
referred services during a specified period but is otherwise not
limited in any way by the Commission’s request or, where a
referral has been made to a PSR Committee, by the Director’s
referral. In other words, both the Director and the PSR
Committee may identify additional species of conduct arising from
the referred services that may constitute inappropriate
practice. In addition, a Committee may refer back to the
Director a request to review the provision of services, other than
referred services, during the specified period.

·
the inclusion of a new Division 3A dealing with the review by the
Director of the Commission’s request. The Director must
first decide whether to review the provision of services (section
88A). Following a review the Director must either decide to
take no further action in relation to the review (section 91), or
give the person a written report setting out the reasons why the
Director has not made a decision under s.91 and an invitation to
make submissions to the Director within 1 month about the action
the Director should take in relation to the review (section
89C). After taking those submissions into account the
Director can either take no further action in relation to the
review (section 91), enter into an agreement with the person under
review (section 92) or make a referral to a Committee (section
93).

·
Strengthening the provisions relating to a Committee’s
investigation of a person under review by making it clear that the
Committee is not to be confined by the Director’s (or the
Commission’s ) grounds of why the conduct of the person under
review may be inappropriate (section 106H). The PSR Committee
may inquire into any practice issues arising from the
referred services and should form its own view with reference to
the profession’s established standards of appropriate
practice. However before making a finding of inappropriate
practice, the Committee must notify the person under review of its
intention to do so and give that person an opportunity to
respond.

·
Enhanced procedural fairness opportunities at various stages of the
Scheme: the Director is required to give the person under review
notice of his intention to refer the person to a PSR Committee (see
above); an express requirement that a person under review must be
notified of a Committee’s intention to make a finding of
inappropriate practice and given an opportunity to respond before
such a finding is made (see above); and the person under of review
will be given an opportunity to make submissions in respect of
appropriate directions before a draft determination is made by the
Determining Authority (section 106SA). This is in addition to
the existing opportunity a person under review has to comment on
the draft determination.

The Bill validates the investigative and adjudicative
referrals made in respect of the 36 cases currently before PSR
Committees which are substantially similar to those invalidated by
the Federal Court in Pradhan v Holmes & Others . In
that case, the Federal Court invalidated both referrals on the
basis that they were not limited to specified conduct and purported
to authorise an investigation into conduct at large.
Although the Full Federal Court has, in another decision, recently
declined to accept the approach taken in Pradhan to
invalidate such referrals, some uncertainty remains.
The Bill validates these referrals to the extent that the matters
referred relate to specified conduct by severing those parts of the
referrals which, in the Federal Court's view, purported to
authorise an investigation into conduct at large'.

In addition to the amendments occasioned by
the decision in Pradhan v Holmes & Others , the Bill also
contains the following amendments to the PSR Scheme:

·
Specifying the material or information which may be given by the
Director to the Determining Authority;

·
Requiring practitioners disqualified from Medicare under the PSR
Scheme to comply with provisions applicable to practitioners
otherwise disqualified under the Act, particularly to display a
notice of disqualification at their practice location/s;

·
Replace an optometrist’s right of appeal of the
Minister’s determination to a PSR Tribunal with a right of
appeal to the Administrative Appeals Tribunal;

·
Technical corrections of incorrect cross-references, from section
106T to 106TA, in a number of provisions relating to the PSR
Scheme;

·
The commencement date of 1 August 1999 in relation to other
relevant provisions of the Amendment Act applies to matters
referred prior to 1 August 1999;

·
The removal of existing inconsistencies and the operation of the
disqualification provisions under the PSR Scheme where a person
under review does not comply with a PSR Committee’s request
to attend, give evidence and answer questions at a PSR Committee
hearing;

·
The provisions of section 105A of the Act, concerning the power of
a PSR Committee to require the production of documents or the
giving of information during the PSR process, apply to matters
referred prior to 1 August 1999 (‘old matters’), the
date of the commencement of the relevant provisions of the
Amendment Act.

AMENDMENTS RELATING TO CLEFT LIP AND CLEFT
PALATE SCHEME

This
amendment will enable eligible persons requiring ongoing treatment
for cleft lip and cleft palate conditions to claim Medicare
benefits under the Cleft Lip and Cleft Palate Scheme until their
28 th birthday. Under the current arrangements, in
order to be eligible for Medicare a patient must, in addition to
the usual Medicare eligibility requirements, be a “prescribed
dental patient”. This is currently defined as a person
who has not attained the age of 22 years. The full definition
is in section 3(1) of the Act and states that a “prescribed
dental patient” is:

A person who has not attained the age
of 22 years and in respect of whom there is a certificate issued in
accordance with the approved form by a medical practitioner or a
dental practitioner who is approved in writing by you or your
delegate for the purposes of this definition stating that the
person is suffering from:

(i) a cleft lip and
cleft palate condition, or

(ii) a condition determined by you,
by notice published in the Gazette, to be a condition to which this
definition applies.

The current age limit was established on the
basis that Cleft Lip and Cleft Palate patients would generally have
completed most specialist dental work associated with their
condition once their facial growth was complete.

However, the age limit of 22 years has created
some difficulties, as some patients require ongoing treatment
beyond their 22nd birthday as their facial growth continues, or
where scheduled surgery had not been possible until after attaining
22 years of age.

The Department has consulted with the
Australian Dental Association (ADA) and the Australian Council of
Dental Specialists (ACDS) regarding a revision of the Medicare
Benefits Schedule (MBS) items and conditions that relate to access
to Medicare Benefits for the treatment of Cleft Lip and Cleft
Palate conditions.

The ADA and the ACDS have recommended that
an age limit of 28 would be appropriate. This amendment would not
alter the patient numbers undergoing treatment, but would allow for
a more structured treatment plan. Additionally, the total
cost for the increase in the age limit would not be significant to
Medicare.

FINANCIAL IMPACT
STATEMENT

The amendments in
the Bill concerning the Professional Services Review Scheme will
have no significant impact upon the finances of the
Commonwealth.

The financial impact of the amendments to the
Cleft Lip and Cleft Palate Scheme, to increase the age limit to 28
years for the ongoing treatment for cleft lip and cleft palate
services, will amount to only a small financial increase to
Medicare.

The Department has been advised that a minimal
number of existing patients would require continuing care beyond
that which is now provided. The average cost per patient
resulting from the proposed amendment was unlikely to increase, as
the treatment involved would not alter. The only significant
change would be the timing at which each stage of treatment was
undertaken.

Some procedures that were previously ineligible
because of the age restriction would have been undertaken as
procedural items in the Oral and Maxillofacial part of the Medicare
Schedule, hence the cost expected from the increase in the age
limit will not be significant to Medicare.

Clause
1: Short title

This section cites
the short title of the proposed legislation as the Health
Insurance Amendment (Professional Services Review and Other
Matters) Act 2002.

Clause
2: Commencement

Sets out the commencement dates for the
Clauses in the Bill.

Subclause (1) provides that each of the
provisions specified in Column 1 of the table commence, or is
taken to have commenced, on the day or at the time specified in
Column 2 of the table. The effect of the details in the table
is that -

1.
Sections 1-3 and any thing in this Act not covered elsewhere by
this table commences on the day on which this Act receives Royal
Assent;

2.
Items 1 to 118 of Schedule 1 commence on the first day of the month
immediately following the month in which this Act receives
the Royal Assent;

3.
Items 119 to 123 of Schedule 1 commence on the day on which this
Act receives the Royal Assent;

4.
Schedule 2 commences on the day on which this Act receives the
Royal Assent;

Subclause (2) states that Column 3 of the
table in subclause (1) is for additional information that is not
part of this Act. This information may be included in any
published version of this Act.

Clause 3:
Schedule(s)

This clause notes
that each Act that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act
has effect according to its terms.

SCHEDULE 1 -
PROFESSIONAL SERVICES REVIEW

Item 1
adds a note to subsection 10(1), which deals with the circumstances
in which a Medicare benefit is payable, to explain that the terms
eligible person , medical expenses , medical
benefit and professional service are defined in
subsection 3(1).

Item 2 amends the definition of
“disqualified practitioner’ in subsection 19D(11) to
add practitioners who become fully disqualified in accordance with
sections 92 or 105, in relation to a direction under paragraph
106U(1)(h), or for the purposes of section 106ZPM. The item
also adds a note to the effect that Medicare benefits are not
payable in respect of services rendered or initiated by, or on
behalf of, disqualified practitioners.

The effect of this provision is to apply the
requirements of section 19D to practitioners who become fully
disqualified under the PSR arrangements, including that a notice of
disqualification is displayed at their practice location/s to
ensure patients attending those disqualified practitioners are
aware the services do not attract a medicare benefit.

Item 3 and 4 amend subparagraphs
23B(7)(a)(ii) and 23B(7)(b)(ii) respectively to make a technical
correction of a cross-reference from section 106T to section
106TA.

Items 5 and 6 provide for AAT review of
the Minister’s refusal to accept an undertaking by a person
who wishes to become a participating optometrist. Previously
such persons could seek review by the Professional Services Review
Tribunal under Part VA of the Act. However, Part VA was
repealed by the Health Insurance Amendment (Professional
Services Review) Act 1999 . No person has been
disadvantaged.

Items 7, 8 and 9 amend
subsection 23DA(1) (paragraph (e) of the definition of relevant
person ), paragraph 23DC(6)(d) and paragraph 23DF(7)(c)
respectively to make a technical correction of a cross-reference
from section 106T to section 106TA.

Item 10 repeals section 80 and
substitutes new sections 79A and 80.

New Section 79A -
Object of this Part

New section 79A sets out the object of Part
VAA of the Act. This Part contains the provisions authorising
the PSR Scheme. The new section states that the object of
Part VAA of the Act is to protect the integrity of Commonwealth
medicare and pharmaceutical benefits programs. In doing so,
the provisions of Part VAA protect patients and the community
from the risks associated with inappropriate practice and protects
the Commonwealth from having to met services costs arising from
inappropriate practice.

New Section 80 - Main
features of the Professional Services Review Scheme

New section 80 outlines the main features of
the PSR Scheme authorised by the provisions of Part VAA.

Section 81 -
Definitions

Items 11-24 amend subsection 81 which contain
definitions of terms and phrases used in Part VAA.

Item 11 repeals the definition of
‘adjudicative referral’ as this term is no
longer used under the revised arrangements authorised by the
amendments to Part VAA.

Item 12 inserts a new definition
of ‘Committee Investigation’ , which under
the new arrangements means an investigation by a Committee under
Division 4.

Item 13 inserts a new definition of
‘Director’s Review’ , which under the new
arrangements means a review undertaken by the Director under
Division 3A.

Item 14 repeals the definition of
‘findings’ and substitutes a new definition,
which removes the reference to an adjudicative referral and
specifies that ‘findings’ means the
Committee’s findings as to whether or not the person under
review engaged in inappropriate practice in providing any or all of
the services specified in the referral made by the Director to the
Committee.

Item 15 repeals the definition of
‘investigative referral’ as this term is no
longer used under the revised arrangements authorised by the
amendments to Part VAA.

Item 16 amends the definition of
‘legal services’ to remove the reference to an
‘adjudicative referral’ as this term is no longer used
under the revised arrangements authorised by the amendments to Part
VAA.

Item 17 repeals the definition of
‘person under review’ and substitutes a new
definition of this term which indicates when a person, the
subject of a request from the Commission under new section 86 (see
Item 30 below), becomes a ‘person under review’.
In effect a person in respect of whom a request has been made by
the Commission becomes a ‘person under review’
following the decision by the Director of PSR to undertake a review
(paragraph (a)) or when a Committee investigation is
undertaken into whether the person engaged inappropriate practice
(paragraph (b)).

Item 18 inserts a new definition of
‘provides services’ , which has the same meaning
given by new subsection 81(2) (see Item 24 below).

Item 19 repeals the definition of
‘referral’ and substitutes a new definition
which defines the term as a referral by the Director to a Committee
under section 93.

Item 20 repeals the definition of
‘referral period’ as this term is no longer used
under the revised arrangements authorised by the amendments to Part
VAA.

Item 21 repeals the definition of
‘referred services’ and substitutes a new
definition of this term which provides that, in relation to a
Committee investigation, referred services means the services
specified in the referral made to the Committee under section
93.

Item 22 inserts a new definition
of ‘review period’ as being the period
specified in the request from the Commission under new
section 86 (see Item 30 below). The review period confines
the Director’s review and the Committee’s investigation
to the provision of services by a person in that period.

Item 23 adds a note, at the end of the
definition of ‘service’ , referring to those
provisions of the Act that provide when a medicare benefit is
payable with reference to section 10.

Item 24 adds a new subsection 81(2)
which defines when a person provides services. Services may
be provided by a practitioner, by the practitioner’s employer
or by a person at a body corporate which employs the practitioner.
The principal effect of this new definition is to identify, for the
purposes of the review process authorised by Part VAA, the person
who is responsible for the provision of services.

Item 29 repeals the heading of
existing Division 3 of Part VAA - ‘Referrals by the
Health Insurance Commission’ and substitutes a new
heading ‘Division 3 - Health Insurance Commission
may request a review’.

Item 30 repeals sections 86 to 89 and
substitutes the following new sections and new division 3A to
clarify the different roles of the Commission and the Director in
the PSR process.

New Section 86 - Commission may
request Director to review provision of services

New Section 86 provides that the Commission
may request the Director to review the provision of services by a
person. The request by the Commission relates to the
provision of services during the period specified in the request.
The request emanates from an examination by the Commission of the
person’s Medicare and Pharmaceutical benefits claiming
profile. On the basis of inferences drawn from the
statistical data, the Commission may request a review by the
Director. The Commission’s request is merely an
initiating step within the PSR review process, following which
particular aspects of the services provision (in other words,
conduct) by a person may be reviewed by the Director and
investigated by a Committee. The concept of the request by
the Commission replaces the current ‘investigative
referral’.

Subsection 86(1) provides that the Commission
may request the Director to review the provision of services by a
person during the period specified in the request. Any
subsequent review by the Director or investigation by a Committee
following a referral are confined to the period specified in the
request made by the Commission.

Under subsection 86(2) the period specified in
the request by the HIC must be a period within the 2 year period
immediately preceding the request.

Subsection 86(3) specifies that the request
made by the Commission must include reasons for the request.

Subsections 86(4), (5) and (6) relate to
guidelines concerning the request by the Commission and provide
that the content and form of the request must comply with any
guidelines made by the Minister. Guidelines so made are
disallowable instruments for the purposes of section 46A of the
Acts Interpretation Act 1901.

New Section 87 -
Commission must notify person of request

New section 87 provides that the Commission
must give the person, in respect of whom a request has been made
under new section 86, written notice of the request.

Subsection 87(1) states that the Commission
must give the person written notice of the request within 7 days
after making the request.

Subsection 87(2) provides that a failure to
comply with subsection 87(1) does not affect the validity of the
request.

New Division 3A -
Review by Director

New Division 3A concerns the review by the
Director of the provision of services by a person following a
request by the Commission made under new subsection 86(1).
The new Division outlines the review process undertaken and the
action that may be taken by the Director.

New section 88 - Director may request
further information

New section 88 empowers the Director to
request further information in relation to the request made by the
Commission made under new section 86.

Subsections 88(1) and 88(2) provide that the
Director, in receipt of a request by the Commission to review the
provision of services by a person, may request further information
from the Commission in relation to the provision of any or all of
those services provided during the period specified in the
request. The note included at subsection 88(1) makes it clear
that the Director’s request may be made to decide whether to
undertake a review or for the purposes of a review.

Subsection 88(3) states that the Commission
must comply with a request by the Director under subsection
88(1) so far as it is capable of doing so.

New section 88A - Director must decide
whether to review

New section 88A concerns the decision by the
Director whether to review the request made by the Commission.

Subsection 88A(1) provides that the Director
must decide, within 1 month of receipt of a request by the
Commission to review the provision of services by a person, whether
or not to undertake the review.

By virtue of subsection 88A(2) the Director
must decide to undertake a review if, after reviewing the request
and other relevant information obtained by the Director, it appears
to the Director that there is a possibility that the person has
engaged in inappropriate practice in providing services during the
review period.

Subsection 88A(3) states that if the Director
does not make a decision within the 1 month period, the Director is
taken to have decided, at the end of that period, to undertake the
review.

Subsections 88A(4) and (5) provide that the
Director must, within 7 days after the decision is made, give
written notice of the decision to the person and the
Commission. Failure to give the notice within the time does
not affect the validity of the decision.

Subsection 88A(6) provides that if the
Director decides to undertake a review, the notice given to the
person under paragraph subsection 88(4)(a) must set out the terms
of section 89(B) (this provision concerns the power of the Director
to require the production of documents or the giving of information
for the purpose of undertaking a review).

Subsection 88A(7) provides that failure to
comply with the requirement of subsection (6) does not affect the
validity of the decision.

Subsection 88A(8) specifies that if the
Director decides not to undertake a review, the notice given to the
Commission under paragraph subsection 88(4)(b) must include the
grounds for the decision.

New section 88B - Scope of the
review

New section 88B concerns the scope of the
review by the Director of PSR. The section provides that if
the Director decides to undertake the review, the Director may
review any or all of the services provided during the period
specified in the request and may undertake the review in such
manner as he or she considers appropriate. Further, in
undertaking the review, the Director is not limited by the reasons
included in the request under subsection 86(3).

New section 89 - When
Director must review

New
section 89 provides that if the Director receives a request (the
‘current request’ ) by the Commission in relation
to a person who was the subject of a previous request where the
Director decided not to undertake a review, the Director must
review the current request. The provisions of subsections 88A
(4) to (6), concerning notification of the review to the person
under review and the Commission, and the scope of the
Director’s review (section 88B), apply to the review of the
current request.

Item 31 amends
subsection 89A(1) by replacing ‘the referred services’
with ‘services provided by the person during the review
period’.

Items 32 and 33 amend
paragraphs 89A(2)(a) and 89A(2)(b) by replacing
‘investigation’ with ‘review’, consistent
with the new arrangements provided under new Division
3A.

Item 34 amends
the definition of ‘ relevant documents’ in
subsection 89B(1) by omitting the word ‘investigation’
and substituting ‘review’, consistent with the new
arrangements provided under new Division 3A.

Item 35 amends
the definition of ‘ relevant documents’ in
subsection 89B(1) by omitting the word ‘referral‘ and
substituting ‘review’, consistent with the new
arrangements provided under new Division 3A.

Item 36 amends
subsection 89B(2) by omitting ‘conducting an investigation
under section 89’ and substituting
‘review’, consistent
with the new arrangements provided under new Division
3A.

Section 89C specifies the action the
Director must take following a review of the provision of
services.

Subsection 89C(1) provides that
following a review, the Director must either decide to take no
further action in relation to the review or give the person a
written report stating the reasons why the Director has not decided
to take no further action and an invitation to make written
submissions to the Director, within 1 month, about the action the
Director should take in relation to the review.

Subsection 89C(2) provides that if
the person is given a report and an invitation under paragraph
89C(1)(b), the Director must, as soon as practicable after taking
into account any submissions made by the person within the time
specified, decide to take no further action under section 91, enter
into an agreement with the person under section 92, or make a
referral to a Committee under section 93.

Item 39 amends subsection
90(1) by replacing the reference to the Director’s decision
on an investigative referral with the Director’s decision on
a review under section 89C.

Item 40 repeals section 91 and
substitutes a new section

New section 91 Decision to take no
further action

This new subsection replaces the
reference to the Director’s decision to dismiss an
investigative referral with the Director’s decision to take
no further action in relation to a review, consistent with the new
arrangements provided under new Division 3A.

Subsection 91(1) provides that the
Director may decide to take no further action in relation to a
review where he or she is satisfied that: there are insufficient
grounds to warrant proceeding to a Committee; or circumstances that
would make a proper investigation by a Committee impossible (for
example, death of the person under review).

Subsection 91(2) provides that where
the Director decides to take no further action, the Director must,
within 7 days, give the Commission and the person under review
written notice of this decision and a report setting out the
grounds for the decision.

Item 41 repeals subsection
92(1) and substitutes a new subsection 92(1) which provides that
the Director and the person under review (who must be a
practitioner) can enter into a written agreement, under which the
person acknowledges that he or she engaged in inappropriate
practice in connection with the rendering and initiation of
specified services during the review period, and specifies the
action that is to take effect in relation to the person..

Item 42 amends paragraph
92(2)(e) by providing that the Part VII authority for the purposes
of the National Health Act 1953 , in respect of a medical or
dental practitioner, may

be suspended for a period of not more
than 3 years as part of action, which may take effect under an
agreement between the Director and the practitioner.

Item 43 adds a note at the end
of subsection 92(2) to the effect that, in accordance with section
19B, medicare benefits are not payable in respect of services
rendered or initiated by, or on behalf of, disqualified
practitioners.

Item 44 amends paragraph
92(4)(d) the effect of which is that the Director must ensure
action specified in subsection 92(2) to give effect to an agreement
is taken.

Item 45 inserts a new section
92A.

New section 92A - If
agreement is not ratified

New section 92A deals with the
situation where the Determining Authority refuses to ratify an
agreement.

In this situation there is a further
three months period in which the Director can either make a
decision under section 91 to take no further action, or seek to
have a further agreement ratified by the Determining Authority, or
make a referral to a Committee. Otherwise, the Director is
taken to have made a referral to a Committee.

The note to this section clarifies
that further agreements can be made under subsection 92(5)
following a refusal by the Determining Authority to ratify an
agreement.

Subsection 93(1) provides for the
Director to set up a Committee and make a referral to the Committee
to investigate whether the person under review engaged in
inappropriate practice in providing services specified in the
Director’s referral.

Subsection 93(2) provides that the
Director may make the referral to the Committee from whom a request
arose under section 106J, instead of setting up a new
Committee.

The heading to section 93 is replaced
by the heading ‘Referral to a Committee’.

Items 47 and 48 amend
subsections 93(3) and (4) by omitting references to
‘adjudicative’ as this term is no longer used under the
revised arrangements authorised by the amendments to Part VAA.

Item 49 repeals subsections
93(6) and (7) and substitutes the following new subsections.

Subsection 93(6) provides that if the
Director makes a referral to a Committee, the Director must prepare
a written report for the Committee, giving reasons why the Director
thinks that the person under review may have engaged in
inappropriate practice in providing the services to which the
referral relates. The Director’s report must be
attached to the referral.

Subsection 93(7) provides that the
Director must, within 7 days after making the referral, give a copy
of the referral and the report to the person under review.

Under subsection 93(7A) the copies
given to the person under review must be accompanied by a written
notice setting out the terms of sections 102 (Notice of hearings),
106H (Committee findings, scope of investigation, etc.) and 106K
(Committee may have regard to samples of services).

Subsection 93(7B) states that the
services that may be specified in the referral are any or all of
the services provided by the person under review during the review
period.

Subsection 93(7C) provides that the
services specified in the Director’s referral are not limited
by the Director’s report under subparagraph 89C(1)(b)(i)

Subsection 93(7D) provides that
failure to comply with subsection (7) or (7A) does not affect the
validity of the referral.

Item 50 amends subsection
93(8) by deleting the reference to ‘investigation into the
referred services’ and replacing it with ‘review that
gave rise to the referral’, consistent with the revised
arrangements.

Item 51 and 52 amend
subsections 93(8) and 93(9) by omitting the reference to
‘adjudicative’ as this term is no longer used under the
revised arrangements.

Item 53 repeals sections 93A
to 94 and substitutes new section 94.

New section 94 - Director
taken to have made a decision after 12 months.

Subsection 94(1) provides that if,
following a decision to undertake a review, the Director has not
decided to: take no further action; entered into an agreement; or
made a referral to a Committee, within 12 months after making the
decision to review, the Director is taken to have made a decision
to take no further action in relation to the review.

The note added indicates that, by
virtue of section 92A, if an agreement between the Director and the
person under review is not ratified by the Determining Authority
within 3 months, the Director is taken to have made a referral to a
Committee.

Subsection 94(2) provides that the 12
months period may be extended by the Director if the review is
suspended under paragraph 89A(2)(b) (where material is referred to
the Commission because fraud is suspected), or because of an
injunction or other court action. The extension must be
in writing and be for a specified period that is not longer than
the period of suspension.

Subsection 94(3) provides that the 12
months period may also be extended if there is failure to comply
with a notice given under subsection 89B(2) (where the director
requires the production of documents or the giving of
information). The extension must be in writing and be for a
specified period that is not longer than the period during which
the person failed to comply with the requirement under
subsection 89B(2).

By virtue of subsection 94(4), new
section 94 does not apply in relation to a review undertaken
because of section 89 (When Director must review).

Item 54 repeals subsection
95(2) and substitutes new subsections 95(1A) and (2). The new
subsections clarify the composition of a Committee, even when the
person under review is not the practitioner who rendered or
initiated the services.

Subsection 95(1A) provides that if
the person under review is not the practitioner who rendered or
initiated all of the referred the services, Panel members must be
members of professions or specialties relevant to the fields of
practice of the practitioners(s) who rendered or initiated the
referred services.

Section 95(2) provides that if the
person under review was the practitioner who rendered or initiated
all of the referred services, the Chairperson and other Panel
members must be practitioners who belong to the profession in which
the practitioner was practising when the referred services were
rendered or initiated.

Item 55 amends subsection
95(6) to clarify that the provision relates to ‘services
specified in the referral’.

Item 56 amends subsection
95(7) by inserting ‘or any of the practitioners’ after
‘practitioner’ as one or more practitioners may have
rendered or initiated the referred services.

Item 57 amends paragraph
96(2)(c) to provide that a challenge by the person under review to
the appointment of a Committee member must, in addition to other
specified requirements, be given to the Director within 7 days of
the person being given a copy of the referral and the report under
subsection 93(7).

Item 59 inserts new section
96A which deals with the cessation and appointment of Committee
members before and during a Committee’s investigation.

New section 96A If Committee
Members are unavailable

Subsection 96A(1) provides that if,
before the start of a Committee’s investigation, a Committee
member ceases to be a Panel member or, for any other reason, is
unable to take part in the investigation, the Director may appoint
another Panel member to the Committee as a replacement.

Subsection 96A(2) provides that where
the Committee has started its investigation and, before completion
of the final report, a Committee member ceases to be a Panel member
or, for any other reason, is unable to take any further part in the
investigation or preparation of reports, the remaining Committee
members may, with the consent of the person under review,
constitute the Committee for the purposes of completing its
investigation and preparing the Committee’s
reports.

Subsection 96A(3) provides that if
the person under review does not consent to the remaining Committee
members continuing the investigation, the Director must set up
another Committee under section 93(1).

Item 60 amends subsection
98(3) the effect of which is to relate the provisions to the person
under review who provides services in accordance with new
subsection 81(2).

Item 61 repeals subsection
99(7) as a consequence of the inclusion of new section 96A (see
item 59).

Item 62 amends subsection
101(2) by deleting the phrase ‘after considering the matters
that are the subject of the referral’, to clarify that the
scope of the Committee’s investigations are not limited to
the reasons given in the Director’ report or the
Commission’s request (see Item 106H).

Items 63 amends subsection
101(2) the effect of which is to relate the provisions to the
person under review who provides services in accordance with new
subsection 81(2).

Item 64 amends subsection
102(3) to clarify that the particulars contained in a notice of a
Committee hearing must relate to ‘referred services’,
being services specified in a referral made to a Committee under
section 93.

Item 65 adds new subsection
102(4) which provides that a notice of hearing may require the
person under review to appear at a hearing of a Committee and give
evidence. Presently, the notice of hearing must require the person
under review to attend. This amendment relates to the
amendments made by Item 66.

New section 104
- Consequences of failing to appear, give evidence or answer a
question when required

New section 104 specifies the consequences of
a person under review failing to appear, give evidence or answer
questions when required at a Committee hearing.

New subsection 104(1) provides that new
section 104 has effect if the notice of hearing requires the person
under review to attend and give evidence at a Committee hearing and
the person under review fails to appear or appears at the hearing
but refuses or fails to give evidence or answer questions.

Under new subsection 104(2) the Committee may
notify the Director if the person under review is a practitioner
and fails to attend a hearing or appears but refuses or fails to
give evidence or answer questions. (At present it is mandatory for
the Chairperson of a Committee to notify the Director in these
circumstances following which the Director of PSR must disqualify
the person under review). The amendment enables the
Committee, in deciding whether to notify the Director of PSR, to
take into account factors beyond the person under review’s
control, for example, a motor accident on the way to the hearing or
the death of a close family member around the time of the
hearing.

New subsection 104(3) provides the Committee
with an option to proceed with the hearing or to propose to hold
another hearing in accordance with section 102.

New subsection 104(4) provides that if the
person under review subsequently appears, gives evidence and
answers questions at a Committee hearing, then the Committee must
advise the Director accordingly and the rights accorded to the
person under review by section 103 are reinstated.

New subsection 104(5) specifies that the
Committee may not notify the Director of a person’s failure
to appear or refuse to give evidence or answer questions at a
Committee hearing or may not proceed with the hearing, if the
person under review notifies the Committee that he or she has a
medical condition and if the person has complied with any
reasonable requirements of the Committee regarding medical
examinations which confirm the medical condition. The
circumstances applying under new subsection 104(5) preclude the
application of new subsection 104(2) and new paragraph
104(3)(a).

Under new subsection 104(6) the requirements
that the Committee notify the Director of the person’s
failure to attend, give evidence or answer questions at a Committee
hearing and the exercise of the option by the Committee to hold
another hearing do not apply if both the person under review and
the Committee believe that answering a question might tend to be
self-incriminating for the person under review.

New Section 105
- Disqualification for failing to appear, give evidence or answer a
question when required

New section 105 provides for disqualification
of a person under review for failing to appear, give evidence as
required or to answer every question when required at a Committee
hearing.

New subsection 105(1) provides that, if upon
receipt of a notice from the Committee under new subsection 104(2)
the person under review (who is a practitioner) has failed to
appear, give evidence or has refused to answer questions at a
Committee hearing, then the Director must fully disqualify the
person from Medicare and advise the Commission.

Under new subsection 105(2) the Director must
revoke the disqualification and advise the Commission of the
revocation as soon as practicable after the Director is informed by
the Committee under new paragraph subsection 104(4)(e) that the
person has appeared, given evidence and answered questions.

New subsection 105(3) provides that a
disqualified person may request the Committee, in writing, to hold
another hearing under section 102 and the Committee must comply
with the request as soon as practicable.

Under new subsection 105(4) a request by a
disqualified person under new subsection 105(3) to hold another
hearing must be made no later than 1 month after the day on which a
copy of the Committee’s draft report is given to the person
under subsection 106KD(3).

Item 67 amends the definition of
‘relevant documents’ in subsection 105A(1) by
including reference to the Director’s referral.

Item 68 amends the definition of
‘relevant documents’ in subsection 105A(1) by
including reference to the review period.

Item 69 repeals subsection 106G(1) and
substitutes a new subsection 106G(1) which applies the provisions
of Subdivision C - Action to be taken by Committees, to the
investigation by a Committee of the provision of services specified
in the Director’s referral.

Item 70 amends paragraph 106G(2) the
effect of which is to ensure that the final report of a Committee
which does not contain a finding of inappropriate practice, is to
be given to the person under review.

Item 71 omits the reference to an
adjudicative referral from paragraph 106G(2)(a).

It em 72 amends paragraph 106G(2)(b) the
effect of which is to enable the Director to extend the Committee
investigation period for 3 months at a time, rather than 1 month at
a time as currently occurs.

Item 73 adds new subsections 106G(5)
and 106G(6).

New susbsection 106G(5) provides that failure
to comply with subsection 106G(2) does not affect the validity of a
final report of the Committee.

New subsection 106G(6) provides that if the
Director gives to a Committee written notice that existing
circumstances make a proper investigation by a Committee
impossible, the provisions of Division 4 of Part VAA of the Act
(relating to Professional Services Review Committees) cease to have
effect concerning the Committee. A copy of the Director’s
notice is to be given to the Commission and the person under
review.

Item 74 repeals sections 106H and 106J
and substitutes the following new sections

New Section 106H -
Committee findings, scope of investigations, etc.

Subsection 106H (1) specifies that a Committee
is to make findings only in respect of the referred services, that
is services specified in the referral.

Subsection 106H(2) provides that a Committee
is not required to have regard to conduct in connection with
rendering or initiating all of the referred services but may do so
if the Committee considers it appropriate in the
circumstances. The note added indicates that, under section
106K a Committee can make findings about a sample of the referred
services and apply those findings across the relevant class of
referred services.

Under subsection 106H(3) the Committee’s
investigation is not limited by the reasons or anything else in the
Director’s report to the Committee under paragraph 93(6)(a)
or any request under section 86 or 106J. The Committee is
able to investigate other matters related to the referred services,
not previously identified, which arise during the course of its
investigation of the referred services.

Subsection 106H(4) provides that before the
Committee makes a finding of inappropriate practice, it must notify
the person under review of this intention, provide the person with
the reasons, and give the person an opportunity to
respond. The Committee may satisfy this obligation
through raising questions at the time a particular service is
examined, at the end of a hearing day, or through the provision of
a draft report setting out its preliminary findings.

Subsection 106H(5) provides that a Committee
complies with subsection 106H(4) by providing the person under
review with its draft report in accordance with section 106KD.

New Section 106J - Committee may
request Director’s review

Subsection 106J(1) provides that if it appears
to a Committee that, during its investigation, a practitioner may
have engaged in inappropriate practice during the review period in
the provision of services other than the referred services, the
Committee may request the Director to review the provision of those
services.

By virtue of subsections 106J(2) and 106J(3) a
request by the Committee must be made in the same manner as a
request by the Commission to the Director under new section 86 and,
for this purpose, specified references in sections 87 and 88 and
subsections 88A(1), (4) and (8) are to be read as references to the
Commission and/or the Committee as appropriate.
However, subsection 86(4) does not apply.

Item 75 repeals subsections 106K(1) and
(2) and substitutes new subsections 106K(1) and (2). Section
106K provides that a Committee may have regard to samples of
services.

Subsection 106K(1) provides that the
Committee, in its investigation of the provision of services, may
have regard only to a sample of services included in a particular
class of the referred services.

New subsection 106K(2) provides that where a
Committee makes a finding of inappropriate practice about conduct
in connection with the rendering or initiation of all, or a
proportion of, services included in the sample, then that person is
taken to have engaged in inappropriate practice in the provision of
all, or a proportion, of the services in the class from which the
sample is chosen

Subsection 106KA(1) provides that, subject to
new subsection 106KA(2) and existing section 106KA(2A), where the
rendering or initiating of the referred services constituted a
‘prescribed pattern of services’, the person under
review is taken to have engaged in inappropriate practice in the
provision of services during the relevant period.

Subsection 106KA(2) provides that the person
is not taken to have engaged in inappropriate practice under
subsection 106KA(1) if, on a particular day or days during the
relevant period, exceptional circumstances (prescribed in the
regulations) existed that affected the rendering or initiating of
services. The operation of exceptional circumstances does not
affect the operation of subsection 106KA(1) in respect of the
remaining day or days in the relevant period on which the person
provided services.

Item 77 amends subsection 106KA(2A) by
relating the person under review to the person who provided the
services as defined in new subsection 81(2).

Item 78 amends subsection 106KA(7) by
omitting the reference to conduct during a particular period and
including the reference to ‘the provision of services during
a particular period’.

Items 79, 80 and 81 amend paragraphs
106KB(3)(a) and 106KB(3)(b) and subsection 106KB(3) respectively by
relating the person under review to the person who provided the
services as defined in new subsection 81(2).

Item 82 repeals subsection 106KC(1) and
inserts a new subsection, the effect of which is that the Committee
is able to notify the Director of any matter of significant
concern, which arises during its investigation, whether or not the
matter is related to the referral

Item 83 inserts a new
subsection 106KD(1A) which specifies that the draft report of the
Committee must set out the reasons for the preliminary
findings.

Item 84 amends subsection
106KD(3) to remove the obligation from the Committee to seek
submissions on its draft report in cases where the report does not
contain a finding of inappropriate practice.

Item 85 amends subsection
106KD(3) to increase the period a person under review has to write
submissions suggesting changes to the draft report from 21 days to
1 month.

Item 86 inserts new section
106KE dealing with a Committee’s final report.

Subsection 106KE(1) provides that if
the draft report of a Committee does not contain a finding of
inappropriate practice, the draft report is the Committee’s
final report and copies must be given to the person under review,
the Director, and the Commission.

Subsection 106KE(2) provides that the
copies of the Committee’s report must include, or be
accompanied by, a written statement that the report is the
Committee’s final report, the report does not contain a
finding of inappropriate practice, and no further action will be
taken as a result of the report. Copies of the report must be
provided to the person under review, the Director, and the
Commission.

Item 87 inserts new subsection
106L(1A) which provides that amended section 106L - Final
report of Committee , applies if the person under review is
given a copy of the Committee’s draft report and invited to
make submissions under subsection 106KD(3).

Item 88 substitutes a period
of ‘1 month’ in lieu of ’21 days’ in
subsection 106L(1), to establish consistency throughout the PSR
review process.

Item 89 inserts a new
subsection 106L(1B) which provides that a final report of a
Committee cannot include a finding of inappropriate practice unless
the finding and the reasons for the finding were included in the
draft report under section 106KD.

Subsection 106L(3) provides that the
Committee must provide copies of the final report to the person
under review and the Director, and that no earlier than 1 month
after that date, then give the final report to the Determining
Authority.

Subsection 106L(4) provides that the
copy of the final report given to the person under review must be
accompanied by a written notice setting out the terms of new
paragraph 106L(3)(b);

Subsection 106L(5) provides that the
copies of the Committee’s report must include, or be
accompanied by, a written statement that the report is the
Committee’s final report, the report does not contain a
finding of inappropriate practice, and no further action will be
taken as a result of the report. Copies of the report
must be provided to the person under review, the Director, and the
Commission.

Item 91 amends subsection
106M(1) by removing the reference to matters in an adjudicative
referral and substituting reference to the Committee’s
investigation.

The purpose of new section 106S is to provide
that the Director may give the Determining Authority
information. Examples of information which might be relevant
are the nature and circumstances of any previous conduct of the
person that has resulted in a criminal conviction or disciplinary
action (by a registering or licensing body), responses to any
counselling, ratification of a section 92 agreement, a final
determination that has taken effect, and any particular needs of
the locality in which the person under review practices.

Subsection 106S(1) provides that the Director
may give to the Determining Authority any information the Director
considers relevant to the authority making a draft or final
determination in accordance section 106U.

Subsection 106S(2) provides that the
information must be given by the Director no later than the day on
which the Committee’s final report is given to the
Determining Authority under subsection 106L(3). The effect of
this provision is that the Determining Authority will consider the
information given by the Director at the same time that it has
available the Committee’s final report.

Under subsection 106S(3) the Director must
also give to the person under review the information given to the
Determining Authority at the time it is provided to the Determining
Authority.

Subsection 106S(4) provides that the
Determining Authority must consider the information given by the
Director in making its draft or final determination in accordance
with section 106U.

New section 106SA -
Authority to invite submissions before making a draft
determination

Subsection 106SA provides that the Determining
Authority must, after being given the final report by the
Committee, give the person under review a written invitation to
make written submissions to the Authority within 1 month about the
directions the Authority should make as a result of the
report. The note added states that section 106U sets out the
directions the Determining Authority can make.

Item 95 repeals subsection 106T(1) and
substitutes a new subsection which requires that the Determining
Authority, on receipt of a final report from a Committee and within
1 month after the report is given to it, make a draft determination
which takes account of any submissions received, and give copies of
the draft determination to the person under review and the
Director. The two notes added provide for the title of sections
106T and 106TA to be amended by the deletion of ‘relating to
person under review if Committee makes a finding of inappropriate
practice’.

Item 96 amends paragraph
106U(1)(c) the effect of which is to relate the provision to the
person who provides services in accordance with new subsection
81(2).

Item 97 amends paragraph
106U(1)(f) by omitting the words “revoked or”, as a
part VII authority can only be temporarily suspended.

Item 98 adds a note at the end
of subsection 106U(1) to the effect that medicare benefits are not
payable in respect of services rendered or initiated by, or on
behalf of, disqualified practitioners.

Item 99 inserts new subsection
106U(2A) which provides that a direction under paragraph 106U(1)(f)
must specify a period of suspension of up to 3 years to start when
the determination takes effect.

Item 100 amends section 106W
by adding a requirement that the copy of the final determination
given to the Commission under section 106L, must be accompanied by
a copy of the final report of the PSR Committee.

Item 101 amends paragraph
106XA(2)(a) (Section 106XA - Referring to an appropriate regulatory
body any significant threat to life or health) by including
reference to a ‘Director’s review’ in lieu of an
investigation under section 89.

Item 102 amends paragraph
106XA(2)(a) by clarifying that the conduct relates to
‘conduct by the person under review’.

Item 103 repeals paragraph
106XB(2)(a) and substitutes a new paragraph which refers to an
opinion being formed by the Director in the course of a
Director’s review rather than an investigation under section
89.

Item 104 repeals paragraph
106ZPA(2)(e) and substitutes new paragraphs (e) and (f) which
clarify the composition of the Determining Authority when
considering whether to ratify an agreement or a particular report
made to the Authority by the Committee.

Item 105 amends subsection
106ZPL(2) by including reference to a ‘Director’s
review’ in lieu of an investigation under section 89.

Item 106 amends paragraph
106ZPL(2)(a) by including reference to ‘a referral resulting
from the review’ and omitting the reference to an
adjudicative referral resulting from the investigation.

Item 108 amends subparagraph
106ZPL(2)(b)(ii) by including reference to ‘a referral
resulting from the review’ and omitting the reference to
‘an adjudicative referral resulting from the
investigation’.

Item
110
amends section 106ZPM by including initiated services.

Item
111
amends section 106ZPM by adding new subsections 106ZPM (2), (3) and
(4). Section 106ZPM provides that a medicare benefit is not
payable in respect of services (rendered or
initiated )
by a person under review for failing to produce documents, give
information and intentionally refusing or failing to comply within
a specified period (which in effect disqualifies the person from
medicare).

Subsection 106ZPM(2) provides that, where the
Director considers that subsection 106ZPM(1) applies to stop
payment of a medicare benefit, the Director must give such a notice
to the person.

Subsection 106ZPM(3) provides that the
Director must give a copy of the notice to the Commission.

Under subsection 106ZPM(4) the person is to be
taken to be fully disqualified for the purposes of section 19D if
subsection 106ZPM(1) prevents the payment of a medicare benefit and
the Director has given a notice under new subsection 106ZPM(2).

Subitem (1) provides that the
amendment made to subsection 19D(11 ) by item 2 applies to a
person who becomes disqualified under the PSR arrangements on or
after the commencement of that Item under section 92, section 105
and paragraph 106U(1)(h) or for the purposes of section 106ZPM.

Subitem (2) provides that the
amendments made to section 23D and the addition of new section
23DAA, by items 5 and 6, apply to determinations made by the
Minister after the commencement of item 63 of Schedule 1 to the
Health Insurance Amendment (Professional Services Review)
Act 1999 at which time the removal of the previous right
of appeal to a PSR Tribunal became effective.

Subitem
(3) applies
the provisions of section 23D as amended by item 5 to
determinations made by the Minister after the commencement of item
63 of the Health Insurance Amendment (Professional Services
Review) Act 1999 and before the commencement of this
subitem .

Investigative
and adjudicative referrals made before commencement - old law
to apply

Subitem (1) provides that the Health
Insurance Act 1973 , in force prior to the commencement of the
amendments made by this Schedule, continues to apply to
investigative and adjudicative referrals made prior to the
commencement of these amendments.

Subitem (3) provides that any referral
to a Committee under section 93 of the Health Insurance Act
1973, made after the commencement of this Schedule, is to be
made under, and dealt with in accordance with, that Act as in force
after that commencement, and

·
if the referral is made as a result of an investigative referral,
the review period is the period that was the referral period for
the investigative referral; or

·
if the referral is made as a result of the Director’s
investigation of a matter referred to the Director by a Committee
under subsection 106H(2) of the Health Insurance Act 1973 as
in force immediately before the commencement of this Schedule, the
review period is the period that was the referral period for the
investigative referral that gave rise to the adjudicative referral
made to the Committee.

Referrals
back to Director to be made as requests

Subitem (4) provides
that if, after the commencement of this Schedule, a Committee makes
a referral (the Committee referral ) to the Director under
subsection 106H(2) of the Health Insurance Act 1973 as in
force immediately before the commencement of this Schedule, the
Committee referral is to be dealt with as if it were a request
under section 106J, as amended by this Schedule; and the review
period for the request is the period that was the referral period
for the investigative referral that gave rise to the adjudicative
referral made to
the Committee.

Director
may give information to Determining Authority on
commencement

Subitem (5) provides that the
amendments made by item 94 to section 106S, which provide
that the Director may on or after the commencement of that item
give information to the Determining Authority, apply even if the
Committee’s final report to which the information relates was
prepared before the commencement of that item.

Item 119 - Validation
of referrals

The purpose of this provision is to validate
investigative and adjudicative referrals that are currently before
Professional Services Review Committees.

The Bill validates the investigative and adjudicative
referrals made in respect of the 36 cases currently before PSR
Committees which are substantially similar to those invalidated by
the Federal Court in Pradhan v Holmes & Others . In
that case, the Federal Court invalidated both referrals on the
basis that they were not limited to specified conduct and purported
to authorise an investigation into conduct at large.
Although the Full Federal Court
has, in another decision, recently declined to accept the approach
taken in Pradhan to invalidate such referrals, some
uncertainty remains. The Bill validates these referrals
to the extent that the matters referred relate to specified conduct
by severing those parts of the referrals which, in the Federal
Court's view, purported to authorise an investigation into conduct
at large.

HEALTH INSURANCE AMENDMENT (PROFESSIONAL
SERVICES REVIEW) ACT 1999

Items 120,
121, 122 and 123 amend the transitional
provisions contained in Part 2 of Schedule 1 of the Health Insurance Amendment
(Professional Services Review) Act 1999 (the Amendment Act) to
clarify the original intention of those
provisions.

The amending Act enhanced
the Committee’s powers in relation to the production of
documents in new section 105A. Although the Amendment Act
generally does not apply to matters referred by the Health
Insurance Commission to the Director before its commencement on 1
August 1999, an exception was made in respect of new section 105A
and the related sanctions contained in new sections 106ZPM and
106ZPN. The Explanatory Memorandum to the Amendment Act
indicated that the purpose of the amendment was to allow a
Committee, in considering an ‘old matter’ to have all
the powers and sanctions available to it to obtain documents or
information under section 105A. However, item 67(3) of the
Amendment Act does not give effect to this policy intent.
These amendments address this technical defect and ensure the
implementation of the original policy intent.

Item
120 amends item 65 of Schedule 1
of the Amendment Act by inserting a reference to new subitem
67(3A). This is consequential upon the amendment made by item
122.

Item
121 amends subitem 67(3) of
Schedule 1 of the Amendment Act to provide that section 105A, in
force prior to the amendments made by Item 43 of the Amendment Act,
ceases to apply to an ‘old matter’ on or after the
commencement of Schedule 1 to the Health Insurance Amendment (Professional
Services Review and Other Matters) Act 2002.

Item
122 amends subitem 67(3) of
Schedule 1 of the Amendment Act by inserting new subsection
(3A). Under new paragraphs (3A)(a) and (b) a Committee may
exercise the powers conferred by section 105A concerning the
production of documents or the giving of information in relation to
an ‘old matter’.

Item
123 amends Item 68 of Schedule 1
of the Amendment Act, by inserting a definition to clarify the
commencement of Schedule 1. The definition clarifies the
commencement date for all Items in Schedule 1 (other than Items 8
and 27 relating to medical records) as being 1 August
1999.

SCHEDULE 2 - CLEFT LIP AND CLEFT
PALATE

Health Insurance Act
1973

Item 1 repeals the definition of
‘prescribed dental patient’.

Item 2 inserts a new definition of
‘prescribed dental patient’ to mean the following:

-
(1) a person who is under 22 years of age and has been issued with
a certificate stating that the person is suffering from a cleft lip
and cleft palate condition, and/or

-
(2) a person who is between 22 and 27 years of age who has been
issued with a certificate stating that the person is suffering from
a cleft lip and cleft palate condition, and whose treatment
commenced prior to turning 22 years of age, and/or

-
(3) a person who is under 22 years of age and has been issued with
a certificate stating that they suffer from a condition determined
by the Minister.

The definition also outlines the definition of
an approved medical practitioner or approved dental practitioner
and how certificates must be issued. It also includes how a
determination by the Minister must be made.

Item 3
clarifies that certificates already issued, or determinations
already made by the Minister remain in force after the commencement
of this Schedule.

SCHEDULE 3 - MISCELLANEOUS AND TECHNICAL
AMENDMENTS

Until 2001 legislation underpinning the issue of
health care cards and pensioner concession cards by the Family and
Community Services Portfolio was contained in the Health
Insurance Act 1973 and the National Health Act 1953 . The
Social Security Legislation Amendment (Concession Cards) Act
2001 removed those provisions and substituted equivalent ones
in the Social Security Act .

However, there remain some definitions and a
subsection in section 3 of the Health Insurance Act, which
relate to the previous arrangements for such cards. These are
now redundant since they have no effect. The amendments in
Schedule 3 of the Bill repeal these items. These amendments
are purely technical and will not have any impact on Centrelink
clients or on access to, or benefits under, the Pharmaceutical
Benefits Scheme.